On November 18, 2016, President-elect Donald Trump announced his intention to nominate Senator Jeff Sessions (R-Ala.) to the post of Attorney General. Some connected to the cannabis industry or marijuana reform efforts expressed anxiety in response to the news; such reactions were hardly surprising given Sen. Sessions’s well-documented prohibitionist stance on marijuana and drug policy writ large. Whatever Sen. Sessions’s views on marijuana may be, those offering bleak forecasts for the legal marijuana business are, necessarily, speculating as to the actions that might be taken by a Sessions-led DOJ. Also, these pessimists are silent when it comes to the strong legislative coalition incentivized to support and defend the cannabis industry. There are at least two strong reasons to remain cautiously optimistic about the future of legal marijuana in the years to come.
First, President-elect Trump’s public stance on marijuana policy will presumably dictate the policy followed by his DOJ. After all, if Sen. Sessions is confirmed as our nation’s next Attorney General, he like his predecessors will serve at the pleasure of the president. On the campaign trail, President-elect Trump repeatedly stated that he feels marijuana regulation is an issue that should be reserved for the states. In an interview with an NBC affiliate station in Colorado, the President-elect even went so far as to say that he would not permit his Attorney General to shut down Colorado’s adult-use marijuana program because “it should be up to the states, absolutely.”
Second, the eight ballot initiatives approved by voters on Election Day brought the number of states that allow some form of legal, regulated cannabis to 28. These 28 states are represented in the legislature by 56 senators and 270 House members, the latter total translating to more than 60 percent of all votes in the lower chamber. Both figures should be reassuring to those within the cannabis industry who are worried about a DOJ crackdown on legal cannabis should Sen. Sessions be confirmed. After all, legislative action has already curbed the DOJ’s ability to interfere with state-legalized medical marijuana.
In December 2014, Congress enacted the Rohrbacher-Carr amendment, a rider on the annual federal omnibus appropriations bill. According to the Ninth Circuit Court of Appeals, the Rohrbacher-Carr amendment “prohibits DOJ from preventing forty states, the District of Columbia, and two territories from implementing their” laws that “authorize the use, distribution, possession, or cultivation of medical marijuana.” Thus, so long as Congress votes to retain the rider each year, it will continue to shield participants in state-legalized medical marijuana programs from prosecution by the DOJ.
Because legal cannabis states hold the majority of votes in both the House and Senate, and because their majority has only grown since the Rohrbacher-Carr amendment was passed in 2014, there is no reason at this time to expect that Congress will abandon it. Indeed, the growing congressional majority held by pro-marijuana states means that expansive legislative protections of states’ legal, regulated marijuana programs are more feasible today than ever before.
The overwhelming majority of voters favor legalization of medical marijuana. This means that the majority of House and Senate members have an incentive to defend state-legal cannabis. And legislators contemplating the possible costs of undertaking efforts to support state legalization of marijuana need not fear interference by the courts; if the Ninth Circuit’s recent holding in United States v. McIntosh is representative of the position of the federal judiciary writ large, then Congress can count on judicial enforcement of well-drawn protections of state-legal cannabis going forward.
In sum, the political climate, presidency and federal judiciary all have given a green light to federal and state legislative action authorizing the use, distribution, possession or cultivation of marijuana. This is cause for cautious optimism within the cannabis industry irrespective of the views held by the likely Attorney General.